Meetings with the Mutual Fund delves into the procedural legal legitimation in SS procedures
"Construction of the procedural legal relationship in Social Security procedures" is the title of the new edition of the cycleMeetings with the Mutual, a program of training webinars from
Silvia Vela, director of Communication and Institutional Relations of the Mutua, presented to Jose Alejos, lawyer at the Center for Legal Advice and Services of
Alejos began by recalling that passive standing, that is, the legal condition that determines the capacity of a natural or legal person to be a defendant in a lawsuit, because they have responsibility, competence or interest in the issue being discussed, is a source of frequent incidents, especially when not all entities that must intervene according to the law are sued.
“Many procedures,” he explained, “are suspended because not all those that should be included in the lawsuit were there, which directly affects workers, companies, mutual insurance companies, the Social Security Institute and the General Treasury of Social Security, in addition to the Administration of Justice itself.”
INSS and TGSS: almost permanent legitimation
In the webinar, it was recalled that article 141 of the Social Jurisdiction Regulatory Law (LRJS) allows INSS (and, where appropriate, the Navy Institute, ISM) and TGSS to appear even if they have not been sued. Therefore, its presence is practically mandatory in most procedures.
The following were cited as cases in which the defendants should be sued:
- Social Security contributory benefits
- Challenges to INSS resolutions
- Contingency determination
- IT processes when the final decision corresponds to the INSS
- Procedures with economic impact for the TGSS
Even in benefits managed by Mutual Insurance Companies – such as cessation of self-employed activity, risk during pregnancy or care of minors with serious illnesses – it is advisable to include them, since“all benefits come economically from the common cash of the Treasury”.
As cases in which they should NOT be sued, I cite voluntary improvements (art. 239 LGSS) and claims for damages due to lack of security measures (unless a benefit surcharge is requested).
When are MCSS legitimized or not?
The speaker dedicated an entire block to clarifying the legitimation of Mutual Insurance Companies, remembering that their actions are strictly limited to article 82 of the General Social Security Law (LGSS). Among the most significant cases are when medical discharges are challenged, both for common and professional contingencies, or when temporary disability benefits are claimed.
On the contrary, this legitimation does not exist in cases such as death and survival due to common contingencies, and in the most recently legislated causes of leave, such as disabling menstruation, termination of pregnancy or being in the 39th week of gestation.
Legitimation of Public Health Services and companies
Public Health Services have very limited legitimacy within Social Security procedures. They should only be sued when temporary disability medical discharges issued by themselves are challenged or when the cost of specific healthcare is claimed. Outside of these two cases, they lack passive legitimacy and should not be part of the procedure, since they have no responsibility or direct intervention in the rest of the matters that are usually discussed before the social jurisdiction.
As for companies, their intervention as a defendant depends on the type of procedure and whether or not there is an economic impact or direct liability derived from their actions. They should be sued when the resolution of the dispute may imply a business cost, and they should not be sued in permanent disability procedures due to common contingencies, in those related to the care of minors with serious illnesses or in those in which maternity benefits or gender gap benefits are claimed.
